On May 13, 2020, the Supreme Court of Wisconsin issued a 4-3 decision in the Wisconsin Legislature v. Palm case, which declared Wisconsin “Safer at Home” Order, Emergency Order No. 28, unlawful, invalid, and unenforceable.  The decision, however, specifically stated that it does not apply to Section 4.a. of the Emergency Order relating to public and private K-12 school closures.

The decision turned on a rather technical question of definitions: was Order 28 a “rule” under Wisconsin Stat. §227.01(13), in which case rulemaking procedures must be followed, or not?  The Wisconsin Legislature had filed the lawsuit, arguing that the head of the state’s Department of Health Services (DHS), Andrea Palm, “broke the law when she issued Emergency Order 28 after failing to follow emergency rule procedures required under Wis. State. § 227.24 (2017-2018)” (¶2). Palm argued that Emergency Order 28 is not a rule, but rather an Order fully authorized by the powers of the Legislature assigned to DHS under Wis. Stat. §252.02, which relates to DHS’s authority to control communicable diseases.

The Court concluded that Emergency Order 28 is a rule and therefore subject to statutory emergency rulemaking procedures established by the Legislature.  The Court found that Emergency Order 28 is a “general order of general application,” which is included in the definition of “rule” in Wis. Stat. §227.01(13).  Therefore, the rulemaking procedures of Wis. State. §227.24 were required to be followed during the promulgation of Emergency Order 28.  Palm had argued that “while an order responding to the pandemic may be a ‘general order’ because it applies to the population as a whole, it is not of ‘general application’ because it responds only to a specific, limited-in-time scenario [the Pandemic].”  The Court disagreed, finding that, based on a 1979 case (Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979)), when the class of people regulated by an order “is described in general terms and new members can be added to the class,” the order is of general application, and therefore a rule.  Since Emergency Order 28 regulates all persons in Wisconsin at the time it was issued and all who will come into Wisconsin in the future, it fell under this definition of “rule.”  Because these rulemaking procedures weren’t followed, Emergency Order 28 is unenforceable.

The Court also noted that Emergency Order 28 criminalized transgressions of the order, but under Wisconsin law, in order for criminal penalties to arise from a violation of an administrative agency’s directive, the directive must have been properly promulgated as a rule.  Because Emergency Order 28 was not properly promulgated as a rule, no criminal penalties are possible for violations.

The Legislature also argued that Palm “exceeded her authority by ordering everyone to stay home, closing all “non-essential” businesses, prohibiting private gatherings of any number of people who are not part of a single household, and forbidding all “non-essential” travel.” (¶2). The Court agreed, concluding that Order 28 “clearly went too far” and exceeded DHS’s authority under Wis. State. §252.02.

The Legislature asked the Court to issue a temporary injunction of Emergency Order, but also requested a stay of that injunction for at least six days.  The Court declined to do so.  Since the Court declared Order 28 invalid and unenforceable and declined to issue a stay, all restrictions imposed on businesses (except schools) under Emergency Order No. 28 were immediately lifted.

Importantly, the Court’s decision does not impact county and city-level orders issued under local authority.  In response to the Court’s Order, both Milwaukee County and Dane County (which include the state’s two largest cities, Milwaukee and Madison) promptly issued their own orders that incorporated elements of the now-invalid Safer at Home order.

A number of other states have pending lawsuits seeking to overturn various aspects of stay-at-home orders, suggesting that, as with Wisconsin, court intervention will be an additional variable in the state reopening process.  Still, as was the case with Wisconsin, it is possible that local jurisdictions may have the ability to step in where a statewide order is vacated.  This is not dissimilar to one of the trends we are seeing with state reopening orders more generally, i.e., where a state reopening order will permit particular local jurisdictions to continue business closure and stay at home requirements given local conditions, even while other parts of the state are reopening.   This suggests that, as we expect to discuss in a separate blog post, in many cases, reopening will not be just a statewide, one-size-fits-all story; businesses will also need to focus on whether local jurisdictions where they have facilities or where employees reside have applicable stay at home and business closure requirements that remain in effect.